*1 сhange of name referred petition fane’s Russell, which the
to violent behavior findings fact in court addressed
district have action. We in Tiffane’s divorce
issued
already the district court abused determined refusing in allow Russell
its discretion telephone
be heard That denial also divorce action.
Tiffane’s position prejudiced Russell’s well name-change petition.
on the judgment re The divorce is provisions govern respect to its
versed parties’ chil visitation with the Russell’s affirmed.3 order
dren and otherwise parties’ chil
changing the surnames of the visitation and name-
dren is reversed. The remanded for the district
change matters are Rus affording after
court’s redetermination opportunity present testi
sell a reasonable
mony by tele and cross-examine witnesses
phone. WALLE, C.J., and
[¶ 13] VANDE
NEUMANN, SANDSTROM and
MESCHKE, JJ., concur.
Gary McDANIEL, Claimant Appellant,
NORTH DAKOTA WORKERS BUREAU,
COMPENSATION
Appellee,
City Minot, Respondent Appellee. No. 960383.
Civil
Supreme North Dakota. Court of
Aug. & surname the issues of visitation "does contest brief that he "does Russell said dissolution,” custody changes.” contest issues *2 Skowronek,
Lamont Shari M. Gianar- Minot, (argued), appel- elli for claimant and brief). (on lant. John C. Skowronek Edison, Special Brent J. Assistant Attor- (argued), Bismarck, ney appellee General Compensation North Dakota Wоrkers Bu- Lynn Kolb, Tracy Vignes Special reau. As- brief). (on Attorney sistant General Eaton, Slorby (appeared), Robert J. Van Minot, Ward, de Streek appellee City & Minot. On brief. MESCHKE, Justice. Gary 1] appealed judgment
[¶ affirming Compensation the Workers Bu- reau’s denial of benefits for his cer that he presumptively claims was by his work a firefighter. We reverse and fact-finding why remand for further sub- stantial medical evidence favorable ignored, apply McDaniel was and to the cor- rect law of causation. McDaniel, City
[¶ fireman for the twenty-seven years, Minot for fought over average of fifty to one hundred active fires year. fires, asserts, eaсh exposed Those he him to a amount toxic fumes containing and smoke polycyclical aromatic hydrocarbons, carcinogens associated bladder cancer. McDaniel has also smoked packs between one-half cigarettes and two day thirty years. for over In diagnosed Novembеr doctors McDaniel with bladder had surgical operations several to remove the applied compensa- cancer. He for worker’s tion for his medical treatment. 4] The Bureau had Robert Brownlee
perform independent medical examina- percent Perhaps more real- report, concluded increments. Brownlee tion. In is, would the individual have question caused his istic developed the if it were not for the separate the “It would be difficult to cancer: *3 occupational exposure. smoking the exposure cigarette from and I firefighting possible exposure from but concluded, even with McGrail McDaniel’s that evidence think in this case the would history, smoking to his his added cigarettes use the would lean towards “I not feel that I risk bladder cancer: do significant being expo- a factor rather than say possibility occupa- the can that without place.” The Bureau found sure work exposures that Mr. McDaniel would tional occupational can- cancer was not bladder developed cancer on the basis bladder was, and, it if firefighters cer for even smoking his alone.” the smoking likely McDaniel’s more claim, by depo- Dr. Marc his and Sehenker testified Bureau denied sition about the established link between sought McDaniel reconsideration. smoking and cancer. He also testi- bladder deposition, Brownlee testi- In a 1995 fied, opinion, is not an his bladder cancer get likely to fied smokers are twice as blad- firefighters, and occupational cancer for not He was der cancer as non-smokers. connecting firefighting to attacked studies connecting bladder cancer aware of studies opinion that fire- cancer. With his bladder a firefighting, believed such relation- but risk factor for fighting is not an established it ship logical: “I would think that would was cancer, firefight- bladder Sehenker believed that, you add common sense to assume be not fаctor to would be we under- toxic to the toxins that accepted Even if he McDaniel’s cancer. smoke, damage cigarette stand from and bladder cancer fire- association between greater one would be than either “the fighting, asserted risks would Sehenker letter, Contrary to his 1993 Brown- itself.” and be a more less than two would not be say not lee conceded he could contributing factor.” He probable than not exposures job his McDaniel’s cancer is “[McDaniel’s] concluded bladder causing role in played a more history ciga- probably related to bladder cancer. smoking.” rette McGrail, Jr., testified [¶ Michael testimony, 8] In addition medical degree of medical deposition a reasonable into several officer received occupa- certainty that cancer is an bladder cancer to published studies bladder on firefighters. tional cancer for He relied Guidotti, Occupa- firefighting. E.g., Tee L. emphasized two that and several studies Firefighters: As- Mortality Among tional greater risk of bladder show a three times Association, sessing Occupational & 37 J. firefighters. McGrail testified cancer for (1995)(firefighters Envtl. Med. firefighter’s work his- must evaluate a doctor from likely to die bladder are twice risk, tory and conclud- to address his level al., cer); R. et Incidence Susan Sama Cancer exposure from fire- ed McDaniel’s smoke Firefighters, Among 1982- Massachusetts agreed fighting placed him at risk. McGrail Am. Indus. Med. J. greatest risk factor for blad- smoking is the risk); (1990)(1.59 E. greater John Vena times cancer, agree it was unable to der Fiedler, Mortality Munici- Roger & C. likely cancer: caused McDaniel’s Fighters, 11 Am. J. palr-Worker Cohort: Fire (1987)(2.86 times say supports an Indus. Med. could that the data [W]e risk). found officer percent greater argument that at least occupational. cancer to be bladder risk for bladder cancer was true, raising always firefighters, Although it is be fairly to his world, was traceable mаlig- McDaniel’s cancer applicable the real where nor the employer, job. rarely present in 50 Neither [themselves] nancies dispute appeal, on had the dual burden of that a non- Bureau clearly supported presump- work condition the evidence caused his it fairly argues cancer was tracea- was the more cause. tion that McDaniel’s only required job. officer Bureau ble to to show a non-work-related condition contrib- However, found uted to his cancer to conclude the Bureau presump- had that the Bureau rebutted the presumption. argues had rebutted He tion, and that cаused the relying erred ex- cancer: perts who did not consider to be failing evidence, By greater weight *4 why explain disregarded expert testimony it effectively [McDan- Bureau has rebutted firefighting. bladder cancer to of iel’s] contention entitlement reason of urges McDaniel that the presumption Testimony clаuse. re- presumption impossible him of relieves polyairomatic hydrocarbons vealed that proving burden of exact cause carcinogens ciga- and other are evident cigarette rette is smoke of bladder cancer. known cause Appellate review of a Bureau that [McDaniеl’s]
Brownlee states bladder deny governed to decision benefits is probably cancer was attributable to v. NDCC 28-32-19. Burrows North Dakota heavy cigarette opposed as to Bureau, Comp. 617, Workers’ 510 N.W.2d occupational smoke and fumes. (N.D.1994). 618 We review record and relationship “A consistent has been dem- decision of Bureau rather than the dis cigarette smoking onstrated between trict court’s decision. Sunderland v. North and bladder and the rate blad- Bureau, Comp. Dakota Workmen’s 370 high people is twice der cancer who (N.D.1985). 549, affirm We people smoke as in who do not smoke.” preponderance Bureau decision ([Dr. testimony], pg.14). Brownlee’s supports findings the Bureau’s fact, ([McDaniel]) findings support its of fact “... he is its conclu law, sions of its support conclusions law its develop of expo- because decision, ([Dr. is in its decision cigarette accordance sure to smoke.” Brown- Spangler with the law. v. testimony], North Dakota pg.17). lee’s Bureau, Comp. Workers 519 N.W.2d ([McDaniel’s]) “My opinion is that his (N.D.1994). Here, disagree we with the Bu probably bladder cancer is more related application compensa reau’s of the workers’ history cigarette to his smoking.” tion law causation. ([Dr. testimony], pg.19). Sehenker’s See, also, Exhibits and B14 B5 as demon- compensablе injury A12] in strating cigarette link expo- between any fairly cludes disease traceable to the sure and [McDaniel’s]bladder cancer. employment. worker’s 65-01- NDCC 02(9)(a)(l). fairly A disease is traceable to The officer recommended denial of employment if there is a direct causal con claim, adoptеd and the Bureau nection between work conditions and dis appealed. recommendation. McDaniel 65-01-02(18)(a). ease. A worker’s summarily The district court affirmed employment need be the sole Bureau, appealed disease, and it if a is sufficient work condition Court. is substantial factor to the argues [¶ 10] McDaniel disease. Christianson in finding Bureau, erred the Bureau Comp. rebutted the Workers 470 N.W.2d presumption (N.D.1991); traced cancer to Syverson v. North Dakota Bureau, work. He asserts the Bureau Workmen’s 406 N.W.2d (N.D.1987). firefighting actually explained in caused their As we Satrom cer.1 v. North Dakota Workmen’s (N.D.1982), just because 328 N.W.2d occupational-cancer pre prone a worker more
personal habits make sumption proof shifts the from the burden Bureau injuries does not mean the to certain Sunderland, firefighter Bureau. deny indicates can a claim when the evidence party against at whom “[T]he certainty that work with reasonable medical presumptiоn directed bears the burden par causally to the conditions are connected proving pre that the nonexistence of the injury. ticular probable fact than its exis sumed is more multiple Id. factors have con tence.” When Compensation causation, the Bureau must tributed do certain can Act creates a carry more to its burden than show one was fairly firefighting are tracea cers related to firefighter’s the more cause for a can ble to that work: cer; that, likely, firefight prove it must However, impairment any condition or significant contributing factor .was not Christianson, paid firefighter injury by health of a full-time diseаse.2 *5 by in a full- occupational posed cancer the cor caused at 615. Dr. McGrail firefighter, resulting in total or paid time the individual question: “[W]ould rect factual disability presumed partial death is to not developed or the cancer if it were for have duty. line occupational exposure?” been suffered the of the If the Bureau have impairment may question, or of The condition health did to the not need answer any ineffectual, existing statutory presumption not be attributed to disease would be disability partial firefighters impossi total or before that or would still have the contrary by showing firefighting is shown was death unless ble burdеn of that As in this competent evidence. used sub- of cancer. sole cause their division, cancer is one conclusion, believe, we is consis- [¶ 15] Our employment a full- which arises out of as tent with where we affirmed the Burrows firefighter injury paid and is due to time that medical evidence over- Bureau’s decision smoke, fumеs, or car- exposure due to to presumption police that a officer’s came toxic, cinogenic, poisonous, or chemical lung work 510 N.W.2d at performance of substances while Burrows, In the Bureau submitted firefight- paid duty active full-time life-long evidence that Burrow’s medical er.... lung there smoking habit caused 01—02(18)(d). explained exposure we to cancer-caus- As was no evidence 65— job, no ing agents and there was Flermoen v. on the (N.D.1991), 220, lung from a risk of Here, police Id. McDaniel submitted presumption’s purpose is to relieve firemen work. risk of blad- impossible proving ample evidence of an increased nearly burden 610, 1995, § legislature N.D. Laws 2. Because McDaniel added NDCC 65-01-15 ch. 1. In 1, 1997, July occupational-cancer to confine the this new filed his claim before to non-smokers: apply not to him. limitation does paid firefighter or law enforce- full-time [A] Bd„ eligible Appeals ment officer who uses tobacco not 2. McAllister v. Workmen's рrovided 313, d the benefits under subdivision Cal.Rptr. Cal.2d P.2d unless the subsection 18 of section 65-01-02 smoking (1968)("Although decedent’s paid firefighter or law enforcement full-time inadvisable, respondents no rea- been offer provides yearly documentation from a contracting that the likelihood son believe that full-time physician which indicates great lung was so cancer from the firefighter paid or officer has law enforcement materially danger have been in- could not preceding years. two used tobacco for not exposure produced to the creased smoke firefighter Any paid or law enforce- full-time burning buildings.”). 30, 1995, employed on Junе is not ment officer July subject until to this section jected firefighting assumption firemen and of der cancer for “blad- enough carcinogens recognized put occupation him at der cancer is a firefighters.” risk. [¶ We reverse and remand for further 20] [¶ 16] We conclude fact-finding. officer must ex- apply did not the correсt law of causation in plain why ignored Dr. Brownlee’s incon- this ease. The officer found sistent statements the evidence can
was the more
cause McDaniel’s
to bladder cancer. The
cer,
did not find whether or not his
clarify
firefight-
officer must
contributing
was
substantial
insignificant
was
cause to
cancer. We remand this еase
and,
so,
bladder cancer
satis-
agency
officer to make
factorily explain why.
finding.
We also remand because there
other'aspects
problems
are
hear
WALLE, C.J.,
[¶ 21] VANDE
ing officer’s decision.
SANDSTROM, JJ.,
MARING and
concur.
concept
adversarial
has
HUNKE,
[¶ MAURICE R.
District
only
application in a worker’s
limited
com
рlace
NEUMANN, J.,
Judge, sitting in
pensation
Syverson,
claim.
406 N.W.2d at
disqualified.
690. The Bureau must consider the entire
adequately explain
medical record and
its
HUNKE,
Judge,
District
concurring.
disregarding
reason for
medical evidence fa
claimant.
vorable
Siewert
North
scholarly opinion
Justice
Meschke’s
*6
Bureau,
Comp.
Dakota Wоrkers
554 N.W.2d
correctly
question
reaffirms that the ultimate
(N.D.1996);
Murray,
Claim
statutory presumption
whether
in
(N.D.1988).
Spangler,
As
01—02(18)(d)
been
has
rebutted is
65—
too,
519 N.W.2d at
illustrates
the Bu
by
one of fact to
hearing
be determined
explain
adequately
reau must
inconsistent
involved,
agency
or
administrative
officer
expert.
statements from the same medical
as the case
be.
v.
Burrows North Da
Bureau,
Comp.
kota Workers’
510 N.W.2d
Here,
[¶ 18]
officer re
(N.D.1994);
v.
Flermoen
primarily
lied
on Brownlee’s statement
Bureau,
his bladder cancer. Schenker based his employ procedural officer to certain mecha- opinion on assumption fact-finding “explain” process nisms was not a “clarify” risk factor to bladder the ultimate decision of clearly while the hearing statutory presumption prevails re- or has I Accordingly, concur overcome. been purpose. for that and remand
reversal Hunke, Judge. District R. Maurice
1997 ND Dakota, Plaintiff of North
STATE Appellee, SISSON, George Defendant
David Appellant.
Criminal No. Dakota.
Supreme of North Court
Aug.